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Tuesday, 29 November 1983
Page: 2948


Senator DURACK(8.36) —I speak on the Sex Discrimination Bill 1983 (No. 2) simply because it is a new Bill that has been introduced today by the Minister for Education and Youth Affairs (Senator Ryan) to replace the one that she first introduced on 22 June this year which has been the subject of considerable debate already in the Senate and certainly in the community. When the second reading debate on that Bill was brought on in the Senate on 21 October I spoke at length on the principles that the Opposition saw were at stake. I indicated a number of criticisms which the Opposition had of the measure and that it was intended to move a general amendment to the second reading to state the principles which the opposition felt were important. The Opposition then indicated that it intended to move a number of detailed amendments as well.

Even earlier than that the Opposition had been calling on the Government to take the Bill away and redraft it because of the number of major problems that had emerged, not only in the drafting of the Bill but also in the number of considerable objections which people had on very well founded grounds. The Government foreshadowed about 53 amendments it proposed to move-I think the Minister was away at the time-in the Committee stage. Of course, they would have greatly cluttered the second reading debate. The need for a redrafted Bill became even more important after those amendments were foreshadowed by the Government. Therefore, the Opposition is pleased that at long last the Government has seen the wisdom of withdrawing and redrafting the Bill which Senator Ryan first introduced on 2 June this year.

The Government has incorporated into the redrafted Bill not only the 53 amendments which it foreshadowed it would move but also it has included a number of other amendments with which the Opposition is pleased. It has improved, I think, even on some of the 53 amendments which it foreshadowed and of which we were given details in October. All in all the Government has, as I said, at long last taken a more positive and understanding step towards the problems which the Parliament and large sections of the community had with the original Bill. However, be that as it may, the Opposition is still concerned about a number of aspects of the Bill that has been reintroduced, despite the improvements that the Government has made to it. Some of the new and major amendments which are included in the Bill which has been introduced today deal with a number of proposals which the Opposition had made regarding the civil liberties aspects of the original Bill. The original 53 proposals contained no amendments in those areas.

As I said, the Bill that has been introduced today does have some substantial amendments to provisions which were, I think, in serious disregard of basic civil liberties. For instance, one clause in the previous Bill provided that when enforcement proceedings were brought in the Federal Court the findings of the Human Rights Commission were to be prima facie evidence in that Court. That provision had a serious effect on the onus of proof, particularly in proceedings in a court for the enforcement of remedies which may have amounted to substantial damages. It was a most undesirable provision. The Opposition had intended to move to delete it. I am pleased to see that the Government has now deleted it.

The Bill that has been brought in today has corrected substantially provisions in the former Bill regarding the right of self-incrimination. The provision had been removed in proceedings before both the Sex Discrimination Commissioner and the Human Rights Commission and has now been amended to apply to conciliation proceedings before the Sex Discrimination Commissioner. In proceedings before the Human Rights Commission it will be a lawful excuse not to answer questions on the grounds that they might incriminate the witness. That is another major improvement to the Bill.

The Opposition was critical of the fact that in proceedings before the Human Rights Commission a person did not have a right to legal representation, except with the leave of the Commission. The new Bill provides that there will be a right to legal representation before the Commission when the Commission is being assisted by counsel. As I said, the Opposition is pleased to note that there has been a number of improvements in that area. At this stage we have not had sufficient time to fully consider whether we propose to make any further amendments in regard to that area, but we certainly recognise that in the areas to which I have referred there have been some major changes for the better.

There is also an improved amendment in relation to educational institutions which are conducted by a particular religion and in accordance with the doctrines or teachings of that religion. The amendment is certainly a great improvement on the original Bill. It is also an improvement on the proposed amendment which was unveiled by the Government among its 53 amendments to the Bill. However, the Opposition believes these amendments do not go far enough in that they apply only to schools conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion. The provisions of the Bill do not exclude schools which may be conducted in accordance with stated moral principles which are not, in fact, dictated by the teachings or beliefs of a particular religion. The Opposition has always maintained that there ought to be an exclusion for all schools which are non-denominational but which are conducted in accordance with stated principles and whose decisions are made in accordance with those principles. Although the Opposition is pleased to see the Government moving in the direction in which it has, it is not satisfied that it has gone far enough.

There are a number of other areas in the Bill which give the Opposition great concern. I refer in particular to the reliance on the external affairs powers. The Opposition will maintain its view that that provision should be excluded from the Bill. The Opposition believes also that there ought to be a general test of reasonableness in regard to the basic definitions of discrimination on the ground of sex and marital status, the same as there has been in the provision regarding the definition of discrimination on the ground of pregnancy. We propose some amendments in that regard. I now take the opportunity of moving an amendment to the motion that the Bill be read a second time. I move:

At end of motion, add:

', but the Senate, whilst welcoming the intention of the Bill to remove discrimination against people on the basis of their sex, marital status or pregnancy, is of the opinion that:

(a) the Bill should not rely on the external affairs power as a head of power;

(b) Australia's signature to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women should not be used to extend the powers of the Commonwealth.

(c) the removal of discrimination against people on the basis of sex should be recognised as not obliging anyone to enter the paid workforce or alter their view of their responsibilities towards their spouses or children;

(d) no decision or action by any educational or child care or other body established for the education of students or the care of children in accordance with the doctrines of a religion or creed or in accordance with stated principles should be affected where that decision or action has been taken in good faith to enable the body to conform with those doctrines or principles;

(e) nothing in the Bill should be taken as approving those articles of the Convention which are not implemented by the Bill; and

(f) the clause of the Bill should be re-drafted accordingly'.

That amendment does not negate the second reading of the Bill. It sets down the general principles which the Opposition believes ought to be either incorporated in the Bill itself or recognised by the Senate in giving the Bill a second reading. For instance, we recognise that paragraph (c) of the amendment-which states that the removal of discrimination against people on the basis of sex should be recognised as not obliging anyone to enter the paid work force or alter their view of their responsibilities towards their spouses or children-is a general principle which may not require particular amendment to the legislation. The Opposition believes there has been so much concern in the community that the Bill will achieve that principle or intends, in the long term , to achieve it. The Senate should make it quite clear in giving the Bill a second reading that it does not countenance that view of the Bill, that the Bill ought to be used to achieve that purpose or that there ought to be any extension of the legislation or any other legislation which may achieve that purpose.

The other principle proposed is that 'nothing in the Bill should be taken as approving those articles of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women which are not implemented by the Bill' ought to be recognised by the Senate, but certainly it does not require incorporation in the Bill itself. Again, the Opposition believes there has been a great deal of concern about the aspects of the Convention, particularly the affirmative action, the provisions in the Convention and some of the statements in the Convention which seems to support the change of roles of men and women in society. Certainly, the Opposition believes these should not be given any support by the Senate when it gives a second reading to this Bill.

The statements incorporated in the speech on the second reading indicate, as I said, the grounds, in the broad sense, on which the Opposition is prepared to give this Bill a second reading. When we move into Committee, a number of detailed amendments will be proposed by the Opposition. At this stage the Opposition is pleased that the Government has gone a long way to meeting a number of major criticisms made of the legislation particularly in relation to a lot of the drafting of the original Bill. The Opposition is particularly pleased that the Government has gone so far in meeting its criticisms of the civil liberties aspects of proceedings before the Human Rights Commission and the Federal Court of Australia. I do not propose to go over the general views which I expressed on behalf of the Opposition when I opened the debate on the previous Bill. I refer honourable senators to what I said then. We incorporate those views in general in this debate on this new Bill.